'no Dog' Rule Overturned

[Panto]

'No dog' rule overturned

DateJuly 3, 2013 - 9:44AM

Jimmy Thomson

A court decision allowing a “hearing assistance” dog to stay in a pet-free apartment building may have set a precedent for other pet owners trying to fight apartment owners who are dead against dogs.

Leading strata lawyer Beverley Hoskinson-Green, a partner at Makinson d'Apice, said the case was a “road map for anyone wishing to get around legitimate by-laws banning pets from strata schemes”.

Larry the Jack Russell was last week given court approval to live in a pet-free Pyrmont building after his owner successfully argued that he was a hearing assistance dog, trained to alert him when there was someone at the door or when a fire alarm had gone off.

Under NSW strata laws, "no-pet" by-laws can't exclude assistance animals, including guide dogs and hearing dogs. But Ms Hoskinson-Green is concerned that other dog owners will use this legal loophole to get their pets into buildings where they are clearly not welcome.

"All you need to do is take a hearing test which is entirely subjective – if you don't want to hear the noise, you don't press the button – and suddenly you have a hearing impairment,” she says. “You then train your dog to bark at the source of any noise and, once you do that, your dog is a 'hearing dog' and can remain in the strata scheme.”

However, Ms Hoskinson-Green stressed “that was not the case with Larry's owner, who presented long-standing audiometry reports demonstrating hearing impairment".

Strata lawyer Suzie Broome, also of Makinson & d'Apice, who ran the case on behalf of the owners corporation of the apartment block, explained the by-law banning pets was on the books before Leone and Dan Drexler bought their unit in the strata scheme. When Mrs Drexler brought Larry into the building she was asked to remove the dog but refused.

“She then made application to the Consumer, Trader and Tenancy Tribunal for an adjudicator's order that she be allowed to keep her pet,” says Ms Hoskinson-Green. “Mrs Drexler withdrew her application before it was considered but soon after the Owners Corporation received a notice that Mr Drexler had a hearing impairment and that Larry the dog had been trained as a hearing dog.”

The owners corporation successfully applied to the CTTT – which adjudicates on strata disputes – for orders that the dog be removed from the strata scheme. However, an appeal tribunal later accepted Mr Drexler's assertion that Larry was a bona fide assistance dog and reversed the decision, saying the owners corporation had failed to prove Larry wasn't a hearing dog.

Mr Drexler, a building inspector, said his hearing had been damaged by years of working in the construction industry. Furthermore, Larry had been certified by the City of Sydney Council as an assistance dog, meaning he was allowed on public transport and into shopping centres.

Suzie Broome said she found it "bizarre" that a dog trained to run away from the hearing impaired person and bark at the noise, could perform the function of a hearing assistance dog. “Larry was not trained to go to the hearing impaired person and tap or paw that person to attract their attention – quite the reverse," she said

However, District Court judge Philip Taylor disagreed and found that Larry satisfied the definition of a "dog used as a hearing dog" and upheld the CTTT's decision.

Ms Broome told Fairfax Media that, regardless of the facts related to Larry's case, the definition of “hearing dog” was too loose.

“To me, if a dog hears someone at the door and runs to you, it's a hearing dog,” she explained. “But if it hears someone outside and runs barking to the door, it's just a pet.”

Ms Hoskinson-Green has good reason to fear an epidemic of claimed disability related to attempts to keep dogs in pet-free buildings. She was involved in a similar case when a dog was removed from a "no animals" strata scheme in Cape Cabarita on the Parramatta River.

“In that case, the dog's owner had a doctor's certificate that the dog assisted in relieving the symptoms of a head injury sustained some time previously,” she told Flat Chat. “However, there was other evidence that the dog's owner went to work, did the shopping, played tennis and went to the gym – all without the dog.

“The CTTT adjudicator concluded that the dog was not an assistance dog as contended and required the animal to be removed from the strata scheme.”

Ms Hoskinson-Green said she is a dog owner and supports current moves to make it easier for strata residents to have pets. “While there is a developing movement for the rights of owners to keep their pets in strata schemes (and I'm very much in favour of that), there are circumstances where owners simply do not want to have animals in their strata scheme.

“In the Cape Cabarita case, there were at least two owners who had suffered injury from dog attacks as children which had left them traumatised. In both cases they had carefully checked the by-laws before they purchased their apartments to ensure that the building was “dog free”.

“Strata schemes are really the ultimate democracy and I'm a great believer in abiding by the will of the majority,” she says.

Suzie Broome adds that the irony of training a dog to bark so it could stay in a strata scheme – where the most common complaint about dogs is their barking – wasn't lost on her, her colleagues or owners.

Hearing dogs are a genuine and valuable help to their owners but they are usually trained to alert them by tapping them with their paw when they hear a noise. Some assistance dogs are even trained to knock the phone off the hook, triggering an automatic emergency services call, if their owner collapses.

Lions Hearing Dogs Australia – a charity that trains and provides hearing assistance dogs – recruit their dogs from rescue kennels and it takes six to eight months to train them. One dog highlighted on their website could tell when its owner was about to have an epileptic seizure, 20 minutes before it occurred.

Hearing Dogs Australia decides which dog goes into which home – the hearing impaired person doesn't get to choose the dog. You can find out more about Lions Hearing Dogs on their website.

http://smh.domain.com.au/real-estate-news/no-dog-rule-overturned-20130702-2p9qc.html

[Cody]

I think Ms Hoskinsin-Green is reading into it far more than is necessary re: other owners pretending to have assistance dogs.

[Panto]

I think Ms Hoskinsin-Green is reading into it far more than is necessary re: other owners pretending to have assistance dogs.

agreed, though she does see strata type situations like this day in day out due to her job, so perhaps it's fairly common? the article in the link directs to another forum where 'plenty of forum discussion on strata pets etc', which I thought best not to link here.

[Trisven13]

I think it is very unfair on other owners in the property if they bought into the building specifically because it WAS pet free. The person with the dog has every right to have a hearing dog BUT they should buy into a block that allows dogs.

I work in strata law and would NEVER own in strata law because I would hate all the restrictions but there are many people who buy into it because of those restrictions.

Edited July 3, 2013 by Trisven13

[Cody]

I think it is very unfair on other owners in the property if they bought into the building specifically because it WAS pet free. The person with the dog has every right to have a hearing dog BUT they should buy into a block that allows dogs.

I work in strata law and would NEVER own in strata law because I would hate all the restrictions but there are many people who buy into it because of those restrictions.

There could be a number of reason why they chose to live there.

And at the end of the day, refusing service dogs is against the law.

[megan_]

I think it is very unfair on other owners in the property if they bought into the building specifically because it WAS pet free. The person with the dog has every right to have a hearing dog BUT they should buy into a block that allows dogs.

I work in strata law and would NEVER own in strata law because I would hate all the restrictions but there are many people who buy into it because of those restrictions.

It is illegal to discriminate against registered assistance dogs. Are you saying that a blind person shouldn't be allowed to live in this building?

[Panto]

I think it would be a fair point if you bought into a pet free apartment because you're highly allergic.

I interpreted what Trisven meant as they should be allowed to choose in a dog/pet free environment as much as we're allowed to choose to live with our dogs, but I don't take it she means discriminating against registered assistance dogs, just empathising with people who chose it because it was pet free and how unfair they might think it is.

[nawnim]

A hearing assistance dog is the same as a guide dog, and they should be allowed access everywhere. Usually they are trained to tap the owner not bark. If the owner is totally deaf he/she will not hear a bark so a dog that barks is not appropriately trained. They also let the owner know if the phone rings, and if a fire alarm goes off. If the owner is hearing impaired, not totally deaf, a barking dog would be very irritating. In this article the dog is not a correctly trained assistance dog. If the dog was correctly trained other residents would not even be aware of its presence. Neighbours barking dogs are very irritating everywhere and I imagine that in an apartment block the noise could be intolerable.

In the case in the OP perhaps the hearing impaired person's hearing deteriorated so that he needed the dog after he had bought the apartment.

As far as people being allergic to dogs, the dog is not in their apartment. Can someone with an allergy insist that other residents are not allowed to use a certain perfume or cleaning agent because he/she is allergic.

[Trisven13]

I think it would be a fair point if you bought into a pet free apartment because you're highly allergic.

I interpreted what Trisven meant as they should be allowed to choose in a dog/pet free environment as much as we're allowed to choose to live with our dogs, but I don't take it she means discriminating against registered assistance dogs, just empathising with people who chose it because it was pet free and how unfair they might think it is.

Yes that is it exactly. I believe that it is unfair on people who may have purchased into the block SPECIFICALLY because it was pet free.

[tdierikx]

Much as I'm a mad dog lady - I can understand those who might not want to live with any nearby.

I work with a lady who has an extreme phobia of all dogs (large or small) - she is completely terrified and freezes up when she sees one - she even gets shaky when talking about them. Imagine her buying into an apartment block expressly because of the no pets rule - and then someone comes in and decides to overturn that rule because of their own needs/desires for a pet. It's not as simple as just selling up and moving somewhere else...

T.